Citation NR: 9741113
Decision Date: 12/11/97 Archive Date: 12/16/97
DOCKET NO. 96-36 101 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to an increased evaluation for post-traumatic
stress disorder (PTSD), currently rated as 30 percent
disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Nicholas M. Auricchio, Associate Counsel
INTRODUCTION
The veteran had active military service from March 1967 to
March 1969.
This matter comes before the Board of Veterans’ Appeals (BVA
or Board) on appeal from a March 1996 rating decision of the
Detroit, Michigan Regional Office (RO) of the Department of
Veteran Affairs (VA). A notice of disagreement was received
in April 1996, and a statement of the case was issued in May
1996. The appeal was completed with a substantive appeal
received in June 1996. The veteran testified at a personal
hearing at the RO in June 1996.
The Board notes that a claim by the veteran for entitlement
to a total rating based on individual unemployability due to
service-connected disability was denied by the RO in an
August 1996 rating decision. However, that issue is not in
appellate status.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that the RO erred in not
granting the benefit claimed on appeal. He maintains that he
is entitled to an evaluation in excess of 30 percent for his
PTSD because it is more severely disabling than currently
evaluated. The veteran’s representative strongly contends
that the evidence clearly supports an increased rating.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence supports an
evaluation of 50 percent for PTSD.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s appeal has been obtained by the
RO.
2. The veteran’s PTSD is productive of no more than
occupational and social impairment with reduced reliability
and productivity due to circumstantial and digressing speech,
irritable, angry and aggressive mood, some disturbances of
motivation, difficulty in establishing and maintaining
effective work and social relationships, and no more than
considerable social and industrial impairment.
CONCLUSION OF LAW
The criteria for an evaluation of 50 percent for PTSD have
been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§§ 4.7, 4.129, 4.130, 4.132, Diagnostic Codes 9411 (1996),
9411 (effective November 7, 1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As a preliminary matter, the Board finds that the veteran's
claim is "well grounded" within the meaning of 38 U.S.C.A. §
5107(a). The United States Court of Veterans Appeals (Court)
has held that an allegation that a service-connected
disability has increased in severity is sufficient to render
the claim well grounded. Proscelle v. Derwinski, 2 Vet. App.
629, 632 (1992). The Board is also satisfied that all
relevant facts needed to adjudicate a schedular evaluation of
the veteran’s psychiatric disability have been properly
developed, and that no further assistance to the veteran is
required on that issue to comply with the duty to assist
mandated by 38 U.S.C.A. § 5107(a).
Disability evaluations are determined by the application of a
Schedule for Rating Disabilities which is based on average
impairment of earning capacity. 38 U.S.C.A. § 1155. Where
there is a question as to which of two evaluations is to be
applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating; otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7. Where entitlement to service
connection has been established and an increase in the
disability rating is at issue, the present level of
disability is of primary concern. See Francisco v. Brown, 7
Vet. App. 55, 58 (1994).
In this case, the RO evaluated the veteran under Diagnostic
Code 9411, for PTSD. The Board notes that effective November
7, 1996, the VA revised the criteria for diagnosing and
evaluating psychiatric disorders, including PTSD. 61 Fed.
Reg. 52695-52702 (1996). On and after that date, all
diagnoses of mental disorders for VA purposes must conform to
the fourth edition of the Diagnostic and Statistical Manual
of Mental Disorders (DSM-IV). 61 Fed. Reg. 52700. Where the
law or regulations change while a case is pending, the
version most favorable to the claimant applies, absent
congressional intent to the contrary. Karnas v. Derwinski, 1
Vet. App. 308, 312-313 (1991).
In the present case, the Board notes that the RO evaluated
the veteran’s claim under the old rating criteria in making
its decision of March 1996. In a May 1997 Supplemental
Statement of the Case, the RO considered the veteran’s claim
for an increased evaluation under the new rating criteria and
confirmed and continued the 30 percent evaluation. In light
of Karnas, the Board will proceed to analyze the veteran’s
PTSD claim under both sets of criteria to determine if one is
more favorable to the veteran.
A. Old Rating Criteria
The field of mental disorders represents the greatest
possible variety of etiology, chronicity and disabling
effects. 38 C.F.R. § 4.125 (1996). The severity of the
disability is based upon actual symptomatology, as it affects
social and industrial adaptability. 38 C.F.R. § 4.130
(1996). In evaluating impairment resulting from the ratable
psychiatric disorders, social inadaptability is to be
evaluated only as it affects industrial adaptability based on
all the evidence of record. 38 C.F.R. § 4.129 (1996).
According to Diagnostic Code 9411, a 30 percent evaluation is
warranted for PTSD when evidenced by definite impairment in
the ability to establish or maintain effective and wholesome
relationships with people. The psychoneurotic symptoms must
result in such reduction in initiative, flexibility,
efficiency and reliability levels as to produce definite
industrial impairment. To warrant a 50 percent rating, the
veteran must demonstrate that his ability to establish or
maintain effective or favorable relationships with people is
considerably impaired. It must be demonstrated that, by
reason of psychoneurotic symptoms, the reliability,
flexibility and efficiency levels are so reduced as to result
in considerable industrial impairment. 38 C.F.R. § 4.132,
Diagnostic Code 9411.
In Hood v. Brown, 4 Vet. App. 301 (1993), the United States
Court of Veterans Appeals stated that the term “definite” in
38 C.F.R. § 4.132 was “qualitative” in character, whereas the
other terms were “quantitative” in character, and invited the
Board to construe the term “definite” in a manner that would
quantify the degree of impairment. In a subsequent opinion,
the General Counsel of the VA concluded that “definite” is to
be construed as distinct, unambiguous, and moderately large
in degree. It represents a degree of social and industrial
inadaptability that is more than moderate but less than
rather large. VAOPGCPREC 9-93. The Board is bound by this
interpretation of the term “definite.” 38 U.S.C.A.
§ 7104(c).
In a March 1994 rating decision, the veteran was granted
service connection for PTSD and assigned a 30 percent
evaluation. This evaluation was based on service medical
records showing that the veteran was a combat veteran and
post-service medical evidence showing PTSD resulting in a
depressed effect, anxiety, loneliness, nightmares,
flashbacks, guilt feelings, guilt of survival, feelings of
hopelessness and worthlessness, hearing voices, emotional
withdrawal, social isolation, and a chronic history of panic
attacks and substance abuse. Further, this evaluation was
based on post-service medical evidence which reported that
the veteran’s anxieties hindered the completion of his
education and productive employment.
In the appealed March 1996 rating decision, the RO confirmed
and continued a 30 percent evaluation for PTSD, following a
total temporary evaluation. This decision was based on a
January 1996 VA examination showing PTSD by history with no
significant memory impairment and no evidence of dysthymia.
Also considered was a January 1996 VA medical statement in
which it was opined that due to the veteran’s active symptoms
of PTSD, the veteran was unable to function adequately in
society and was unemployable due to PTSD. In this VA medical
statement, the veteran was also noted to have an inability to
maintain effective relationships with authority figures which
prevents him from gaining employment and was noted to have a
Global Assessment of Function (GAF) score of 55. Further, a
January 1996 VA hospital discharge summary reported mild PTSD
and a GAF score of 60.
In the present case, the Board is of the opinion that an
increased evaluation for the veteran’s PTSD is not warranted
under the old rating criteria. Although the evidence of
record shows that the veteran manifests a number of symptoms
associated with his PTSD, the level of social and industrial
impairment occasioned by the veteran’s current symptoms, as
reported on VA examination in April 1997, is properly
characterized as moderate in degree. In this regard, on VA
examination in April 1997, the veteran’s symptoms were noted
to include subjective complaints of severe anxiety attacks;
explosive anger (resulting in withdrawal); and fear of dying
(resulting in chronic pain); and objective findings of a mood
colored mostly by irritability, anger, and aggressive traits;
circumstantial thought processes with numerous digressions;
survivor guilt; slight confusion as to fund of information
and historical events; and limited insight. A diagnosis was
rendered of PTSD by history and a GAF score of about 60 was
assigned, representing moderate symptoms (e.g., flat affect
and circumstantial speech, occasional panic attacks) or
moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-
workers). The April 1997 examination report is quite
detailed and comprehensive, and the Board finds it should be
afforded considerable probative value.
Although, a VA physician opined, in a January 1996 VA medical
statement, that the veteran was unable to function adequately
in society and was unemployable due to PTSD, this opinion is
not supported by adequate clinical findings necessary to
support a higher evaluation under the diagnostic criteria for
PTSD. Hence, this opinion lacks probative value. Similarly,
a February 1996 VA outpatient treatment record which reported
that the veteran had difficulty finding employment and was
not capable of holding a job due to problems with authority
figures, lacks probative value, as this finding is not
supported by adequate clinical findings.
Further, the Board observes that, in June 1996 Social
Security Administration (SSA) decision, the veteran was
awarded total disability benefits based on unemployability
due to a primary diagnosis of PTSD and a secondary diagnosis
of depression. However, although, in the SSA Functional
Capacity Assessment, it was reported that the veteran’s PTSD
may affect concentration, attendance, pace, and working with
groups, the veteran was also noted to be able to do some
tasks on a sustained basis. Additionally, in the SSA Mental
Residual Functional Capacity Assessment, the veteran was
found to be “not significantly limited” in all subcategories
for “understanding and memory” and adaptation. In the area
of social interaction, the veteran was found to be
predominately “not significantly limited,” with only one
subcategory showing him to be “moderately limited.” Finally,
in the area of sustained concentration and persistence, the
veteran was found to be “not-significantly limited” in four
subcategories and “moderately limited” in the other four
subcategories. The veteran was not found to be “markedly
limited” in any of the four, main mental residual functional
capacity categories and overall was shown to be predominately
“not significantly limited.” As the foregoing evidence does
not demonstrate that the veteran’s social and industrial
impairment, with respect to his PTSD symptoms, is more than
moderate, the Board concludes that the June 1996 SSA decision
does not support a higher evaluation under the rating
criteria for PTSD.
Viewed in its entirety then, the Board finds that the
evidence of record (including VA outpatient treatment reports
dated from December 1971 to June 1996; medical reports
considered by SSA (VA outpatient treatment reports dated from
December 1971 to June 1996 and March 1996 medical report of
State of Michigan Disability Determination Program); VA
examination reports, dated in October 1993, January 1996, and
April 1997; August 1995 VA medical report of Agent Orange
Veteran Payment Program; January 1996 VA hospital discharge
summary; January 1996 VA medical statement; March 1996
medical report from State of Michigan Disability
Determination Program; and June 1996 SSA disability
determination), paints a disability picture which is more
consistent with a 30 percent disability rating, rather than a
50 percent disability rating. In this regard, the evidence
of record, including the findings of the April 1997 VA
examination do not show that the veteran’s ability to
establish or maintain effective or favorable relationships
with people is considerably impaired or by reason of
psychoneurotic symptoms, the reliability, flexibility and
efficiency levels are so reduced as to result in considerable
industrial impairment, so as to warrant a 50 percent
evaluation under Diagnostic Code 9411. Rather, the veteran’s
current level of disability for his PTSD is more closely
defined by the rating criteria for a 30 percent evaluation.
Accordingly, under the old rating criteria for Diagnostic
Code 9411, the Board determines that an increased evaluation
for the veteran’s PTSD is not warranted.
B. New Rating Criteria
As noted previously, effective November 7, 1996, the VA
revised the criteria for diagnosing and evaluating
psychiatric disabilities, including PTSD. 61 Fed. Reg.
52695. The new rating criteria for psychiatric disabilities
are found at 61 Fed. Reg. 52701-52702 and are now set forth
in 38 C.F.R. Part 4, Diagnostic Code 9411, 9440 (effective
November 7, 1996).
Under the new rating criteria for Diagnostic Code 9411, a 30
percent rating is warranted for occupational and social
impairment with occasional decrease in work efficiency and
intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with
routine behavior, self-care, and conversation normal), due to
such symptoms as: depressed mood, anxiety, suspiciousness,
panic attacks (weekly or less often), chronic sleep
impairment, mild memory loss (such as forgetting names,
directions, recent events). A 50 percent rating is warranted
for occupational and social impairment with reduced
reliability and productivity due to such symptoms as
flattened effect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short-term and long-term memory (e.g., retention of only
highly learned material, forgetting to complete tasks);
impaired judgment; impaired abstract thinking; disturbances
of motivation and mood; difficulty in establishing and
maintaining effective work and social relationships. A 70
percent rating is warranted where the disorder is manifested
by occupational and social impairment with deficiencies in
most areas, such as work, school, family relations, judgment,
thinking or mood, due to such symptoms as suicidal ideation;
obsessional rituals which interfere with routine activities;
speech that is intermittently illogical, obscure, or
irrelevant; near-continuous panic or depression affecting the
ability to function independently, appropriately, and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a worklike setting); and an inability to establish
and maintain effective relationships.
In reviewing the report of the April 1997 VA examination in
light of the new rating criteria, the Board notes that the
examiner reported the veteran’s affect to be appropriate. It
was further reported that there was no impairment of memory
or abstract thinking. However, the veteran’s speech was
described as quite circumstantial and digressing. His mood
was reported to be colored by irritability, anger and
aggressive traits. The veteran’s complaints included severe
anxiety attacks and explosive anger.
The Board is thus presented with a situation in which some of
symptoms required under the new criteria for a 50 percent
rating have been shown. By regulation, when there is a
question as to which of two evaluations shall be applied, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
rating. 38 C.F.R. § 4.7 (1996). Under the circumstances of
this case, the Board believes that evidence gives rise to
such a question as to whether a 30 percent or a 50 percent
evaluation should be applied. Accordingly, by regulation,
the Board must find that entitlement to a 50 percent
disability rating under Diagnostic Code 9411 (effective
November 7, 1996) is warranted.
Nevertheless, the clear preponderance of the evidence is
against entitlement to a rating in excess of 50 percent.
There is simply no evidence that the veteran’s PTSD is
productive of the symptoms outlined for such a rating under
either the old or the new criteria. It follows that the
negative evidence is not in such a state of equipoise with
the positive evidence on this question as to otherwise permit
a rating in excess of 50 percent. 38 U.S.C.A. § 5107(b)
(West 1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
A 50 percent disability rating for the veteran’s PTSD is
warranted. To this extent, the appeal is granted.
ALAN S. PEEVY
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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